COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67665 MARY H. MILLS, ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF CLEVELAND : : Defendant-appellee : : DATE OF ANNOUNCEMENT : JUNE 15, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-246805 JUDGMENT : Affirmed DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellee: ROBERT F. LINTON, ESQ. MALCOLM C. DOUGLAS, ESQ. Hoyt Block Suite 300 Assistant Law Director 700 West St. Clair Avenue City Hall-Room 106 Cleveland, OH 44113-1130 601 Lakeside Avenue Cleveland, OH 44114 - 2 - PATTON, C.J. Plaintiff-appellants, Mary Mills, et al. appeal the trial court's ruling granting defendant-appellee, City of Cleveland's motion for summary judgment. Mills is the grandmother and legal custodian of six-year old Brandon Rhodes who nearly drowned in the Central Recreation Center indoor swimming pool on June 29, 1992. The facility is owned and operated by the City of Cleveland. Brandon was found at the bottom of the deepest end of the pool. The lifeguard on duty pulled Brandon out of the pool and CPR was performed. It is estimated that Brandon remained under water for approximately ten to fifteen minutes. Brandon remained in a coma until his death on July 6, 1992. Mills' first assignment of error states: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT BASED ON THE POLITICAL SUBDIVISION TORT LIABILITY ACT, SINCE 2744.02(B)(4) EXPRESSLY IMPOSES LIABILITY FOR NEGLIGENCE OCCURRING WITHIN A BUILDING USED IN THE PERFORMANCE OF A GOVERNMENTAL FUNCTION, WHICH INCLUDES THE OPERATION OF A SWIMMING POOL. Mills maintains that the trial court erred when it granted summary judgment based on the political subdivision tort liability act because R.C. 2744.02(B)(4) expressly imposes liability for negligence occurring within a building used in the performance of a governmental function, which includes the operation of a swimming pool. Specifically, Mills claims that R.C. 2744.01(C)(2)(u) defines governmental function to include the operation of an indoor - 3 - recreation facility and swimming pool and therefore the City is not immune from tort liability pursuant to R.C. 2744.02(B)(4). The statutory analysis will be set forth first. The state legislature enacted R.C. Chapter 2744, which governs liability of political subdivisions. In general, R.C. Chapter 2744 provides that a political subdivision is not liable in a civil action for injury to a person allegedly caused by an act or omission of the political subdivision or its employees in connection with a governmental function. R.C. 2744.02(A)(1). Five exceptions to R.C. 2744.02(A)(1) exist where a political subdivision may be liable in a civil action. R.C. 2744.02(B). Upon establishing liability under one of these five exceptions to the general rule of immunity, a political subdivision may still avoid liability through the defenses contained in R.C. 2744.03. Mills asserts the exception in R.C. 2744.02(B)(4) applies. It states: (B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political subdivision is liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or of any of its employees in connection with a governmental or proprietary function, as follows: (4) Political subdivisions are liable for injury, death, or loss to persons or property that is caused by the negligence of their employees and that occurs within or on the grounds of buildings that are used in connection with the performance of a governmental function, including, but not limited to, office buildings and courthouses, but not including jails, places of juvenile - 4 - detention, workhouses, or any other detention facility, as defined in section 2921.01 of the Revised Code. R.C. 2744.01(C)(2)(u) states: (2) A "governmental function" includes, but is not limited to the following: (u) The design, construction, reconstruction, renovation, repair, maintenance, and operation of any park, playground, playfield, indoor recreational facility, zoo, zoological park, bath, or swimming pool or pond, and the operation and control of any golf course. Mills claims that the City is not immune from liability because the operation of a swimming pool is a governmental function within or on the grounds of a building that was used in connection with the performance of a governmental function. This appears to be a logical conclusion. However, the Supreme Court of Ohio has recently held that the operation of swimming pools is subject to sovereign immunity. Garrett v. Sandusky (1994), 68 Ohio St.3d 139, 140. We note that the court did not fully set forth precedent nor did it discuss the statute with its exceptions. We are nonetheless bound by its ruling. It is axiomatic that a motion for summary judgment shall be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is - 5 - made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. Moreover, upon motion for summary judgment pursuant to Civ. R. 56, the burden of establishing that material facts are not in dispute, and that no genuine issue of fact exists, is on the party moving for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64, 66. However, in that Civ. R. 56(E) requires that a party set forth specific facts showing that there is a genuine issue for trial, such party must so perform if he is to avoid summary judgment. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, at paragraph seven of the syllabus. Viewing the underlying facts in a light most favorable to Mills we conclude no genuine issue of material fact exists. We are bound by the ruling in Garrett v. Sandusky, supra, which states that the operation of swimming pools is subject to sovereign immunity. Accordingly, Mills' first assignment of error is overruled. Mills' second and third assignments of error state: II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR THE CITY OF CLEVELAND UNDER THE RECREATIONAL USER STATUTE R.C. 1533.18.1, BECAUSE THE INDOOR CENTRAL RECREATION CENTER IS NOT THE TYPE OF PROPERTY THE STATUE WAS INTENDED TO IMMUNIZE. III. TO THE EXTENT ANY CONFLICT EXISTS BETWEEN THE POLITICAL SUBDIVISION LIABILITY ACT AND THE RECREATIONAL USER STATUTE, THE FORMER CONTROLS - 6 - SINCE IT IS THE MORE RECENTLY ENACTED AND MORE SPECIFIC STATUTE. Mills argues that the trial court erred when it granted the City's motion for summary judgment under the recreational user statute because it was not intended to immunize an indoor pool. Mills also asserts that to any extent conflict exists between the political subdivision liability act and the recreational user statute, the political subdivision liability act controls because it was recently enacted and a more specific statute. Mills' second and third assignments of error are rendered moot by the disposition of Mills' first assignment of error. App.R. 12(A)(1)(c). Mills' fourth assignment of error states: IV. THE GRANTING OF IMMUNITY TO THE CITY OF CLEVELAND UNDER EITHER THE POLITICAL SUBDIVISION LIABILITY ACT OR THE RECREATIONAL USER STATUTE VIOLATES APPELLANTS' EQUAL PROTECTION RIGHTS AND THEIR CONSTITUTIONAL RIGHTS TO A REMEDY. Mills claims that the her constitutional right to a remedy was violated when the trial court granted immunity to the City. Specifically, Mills claims that her constitutional right to a remedy, due process and equal protection of the laws were violated because the political subdivision liability act and recreational user statute are unconstitutional. Since we dismissed Mills' assignment of error pertaining to the recreational user statute as moot we will not address the - 7 - constitutionality of that specific statute. We will focus on the constitutionality of R.C. 2744. The Ohio Supreme Court held in Menefee v. Queen City Metro (1990), 49 Ohio St.3d 27, that R.C. 2744 is constitutional. The court stated: A statutory classification which involves neither a suspect class nor a fundamental right does not violate the Equal Protection Clause of the Ohio or United States Constitutions if it bears a rational relationship to a legitimate governmental interest. (Citation omitted). Id. at 29. * * * In a rational-basis analysis, we must uphold the statute unless the classification is wholly irrelevant to achievement of the state's purpose. (Citation omitted). Id. The court stated that the state has a valid interest in preserving the financial soundness of its political subdivisions. Id. Therefore, R.C. 2744 is constitutional because its grant of limited immunity to political subdivisions is a legitimate state interest. Accordingly, Mills' fourth assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J. DIANE KARPINSKI, J., CONCUR CHIEF JUSTICE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .